The Politics of Replacing Scalia

Just when you thought the American political scene couldn’t get any more contentious, hostilities have suddenly broken out over a brand new issue. The unexpected death of U. S. Supreme Court Justice Antonin Scalia over the weekend has thrown Washington into complete uproar.

Until this week one might occasionally hear mention of the fact that, considering the ages of the current members of the Supreme Court, the next president will quite possibly end up nominating two (or even more) new justices during their term of office. That is significant. Since the justices serve for life, these appointments could determine which way the Court leans for an entire generation.

But it was a distant possibility set within a vague time frame. Political watchers on both the conservative and liberal sides were aware of its importance, but it did not gain much public attention.

Now the choice of the next Supreme Court Justice has suddenly become an urgent matter. Everyone is talking about it and speculating about what will happen next.

Of course Republicans don’t want Obama to choose Scalia’s replacement. The addition of a liberal member to the Court would reverse the present 5-4 conservative split. It would prove disastrous to conservative hopes to use the Court to overturn Obama’s executive actions and rule in favor of conservatives on other matters.

Republicans are pinning their hopes on 1) delaying the appointment until after Obama is out of office, 2) winning the Presidency, and 3) retaining their majority in the Senate. That’s a big call. Should they fail to achieve any one of these objectives, their plans will be sunk. On the other hand, if the Democrats win the Presidency and the Senate (it only takes winning four seats), it will mean no possibility of turning back their suspected liberal agenda. So the stakes are certainly quite high.

But there are a few facts that must be kept in mind. First, the President has a constitutional duty (under Article II, Section 2) to nominate a new appointee to the bench to fill any vacancy. That is usually done within 60 to 90 days. For President Obama not to try and fill the vacancy would be a dereliction of duty.

Second, under the same constitutional article, the Senate has a duty to give its “advice and consent” for the nominee, after which the appointment can proceed. The Senate is not obliged to consent to every nominee, but they are obliged to review and advise the president on the nominee’s worthiness. They can reject the nominee. But for them to refuse to hold a hearing would likewise be a dereliction of duty.

Third, there is no justification for the argument that President Obama should not put forward a nomination since he is a “lame duck” in his last year in office. On no less than seven occasions during the 20th century a Supreme Court position became vacant (either through death, retirement, or resignation) during a president’s final year in office. In each instance, the president put forward a nominee to fill the vacancy, and most of the time that vacancy was filled.

The only time it was not filled was late in Eisenhower’s last year of office and Congress had already adjourned. Eisenhower made an interim appointment, which was quickly ratified by the next session of Congress.

It should also be remembered that President Ronald Reagan nominated Anthony Kennedy to fill a vacancy on the bench during his final year in office, and the Democratic-controlled Senate confirmed Kennedy by a vote of 97 to 0.

One has to go all the way back to the Civil War to find a time when a President left a Supreme Court position vacant for an entire year – and that was because the nation was … well, in the midst of a civil war.

President Obama has already announced that, in keeping with his constitutional duty, he intends to put forward a nominee to replace Scalia. According to the commentators, he has two main courses of action.

First, he can choose a nominee who, political posturing aside, everyone should be able to agree to. He could, for example, choose someone who was previously confirmed unanimously to a lower court position by the Senate. One name that keeps appearing in this regard is Sri Srinivasan, who has no political ax to grind, has worked for both the Bush and Obama administrations, and is seen as a brilliant jurist. Even Ted Cruz has called him “a longtime friend.” It would be awkward for the same Republican members of the Senate who confirmed him without hesitation to the D.C. Circuit Court in 2013 to now label him as unsuitable.

The second option would be for Obama make a more contentious nomination, but one that would cost Republicans dearly in opposing during the presidential election campaign. The current Attorney General Loretta Lynch is frequently mentioned as one such candidate. She has outstanding qualifications as a prosecutor, and was recently successfully vetted by the Senate to become Attorney General. Should she as a woman and as an African-American be rejected by Republicans it could mean voters from both these demographic groups turning against Republicans and rallying to the side of the Democrats in the election this fall.

Or, in an even more pointed maneuver, Obama could nominate Mariano-Florentino [Tino] Cuéllar, a brilliant young Latino man who is an Associate Justice on California’s State Supreme Court. He was born in Mexico, but is a naturalized U.S. citizen. His perspective on immigration issues would be unique, and if Republicans should reject him for the Supreme Court it could alienate a vast swath of American Latino voters.

Who will Obama choose as his nominee? It’s anyone’s guess at this point. Will he try to find an acceptable moderate candidate, or act in a more politically partisan way? Perhaps that is not the most important issue.

What really counts now is how the Republican majority in the Senate will react. If it becomes clear that they are going to block any nominee that Obama puts forward, it will further polarize the American public, and may well mobilize Democrats and independents to show up at the polls and ensure that Republican attempts to control the nomination process ultimately fail.

In the meantime, The Supreme Court will be hamstrung with only eight members in a 4 to 4 liberal-conservative split for at least a year. National policy will fragment on a number of important issues such as immigration, abortion, birth control, unions, affirmative action and voter rights, as lower appeal courts decide on differing policies in their separate jurisdictions with no way of resolving these issues at the national level.

The crisis of a Congress that is incapable of doing its job will have spread to the Supreme Court, and the public will be in an angrier and more surly mood than ever.

I have a feeling that this is not going to end well … or quickly. This election is suddenly a whole new ballgame.

About politspectatorEdward Clayton grew up in the US but has lived in Canada for the last 4 decades. He is a long time peace activist and committed to issues of social justice and good government. He reports on Canadian, American, and global politics from a Canadian perspective.

Edward Clayton grew up in the US but has lived in Canada for the last 4 decades. He is a long time peace activist and committed to issues of social justice and good government. He reports on Canadian, American, and global politics from a Canadian perspective.